Dutch Government Realizes That Non-Original Works Don't Deserve Copyright

from the about-time dept

For many years, we've discussed how Europe allows for a "database right" on collections of works, while the US forbids it. The US considers a database right improper, since copyright is not supposed to apply to facts and isn't supposed to be given out solely based on the "sweat of the brow," but rather to incentivize creativity. The Europeans, on the other hand, argued that the labor of putting together a database needed to be protected to create the necessary incentives for a thriving information/database industry. In many ways, this has created a useful natural experiment concerning copyright law and whether or not it actually creates incentives. The data has been overwhelming. Without a database right, the database industry in the US has thrived, while the same market in the EU has stagnated.

And yet, many in Europe (and some in the US) still see good things in such a government granted monopoly. We were just talking about how clinging to this outdated and clearly failed concept was now threatening important moves towards open data.

Thankfully, it appears that at least one European country has realized how damaging such rights are, and is moving in the other direction. The Dutch government, which has a number of politicians who really seem to get this stuff, is apparently trying to "modernize" its copyright law by removing protection for any "non-original" works such as databases. The link from the Future of Copyright site notes that the database right -- called "geschriftenbescherming" -- is being removed, as officials are noting that copyright should be focused on creativity, not merely protecting the upfront investments of publishers and printers:

The modernization of copyright law in the Netherlands will be done in two ways. Firstly, modern copyright will only serve to protect creative performances. Since ‘geschriftenbescherming’ does not cover any creative performance, this will now be removed. Secondly, the Dutch government believes copyright should not inadvertently preclude the creative reuse of existing material or the innovative use of information and easy exchange thereof. The protection of non-original works is often invoked to regulate parallel import instead of merely protecting the publisher’s or printer’s investment. By removing the additional protection under copyright law, the exchange and re-use of these works may be simplified. Also this could remove a legal barrier to the use of open data.

As noted in that last sentence, this story is almost the polar opposite to the one we just had about this same concept being used to hold back open data. This would be a nice step forward for the Dutch, and hopefully other European countries will quickly get with the program as well.

Update: In the comments someone points out that this is related to the EU Court of Justice ruling we wrote about last year, which noted that copyright rights need to include an element of creativity and that you can't just copyright facts.

Update 2: More information from the comments, which argues that, despite great similarities between the database right and geschriftenbescherming, this only impacts the latter not the former. The specific issue appears to be that geschriftenbescherming falls under copyright law and copyright law requires creativity (as noted in the story from last year). Yet database rights, fall under the database directive, and don't require any creativity (which is silly, for reasons we explained earlier). We apologize for any confusion and would like to thank the commenter for adding further details.

It will be interesting to see how this turns out since Dutch museums hold some of the world's most famous paintings -- think "Old Dutch Masters" such as Rembrandt, and those museums have been in the forefront of claiming copyright on images of paintings.
Que the "national heritage" claims in 3,2,1...

The Dutch are doing it wrong

Not only should non-original works be eligible for copyright protection, but also net-yet-existing works as well.

This will benefit the economy is exactly the way the Patent Gold Rush is benefiting the economy.

People could then rush to plagiarize works, or just outright copy them, and file or copyright registration. Furthermore, people could file generalized copyright registrations for not yet existing works. The latter would be based on a yet to exist work was an infringement of some copyrightable story plot, or a sequence of copyrighted words. A claim of infringement against some future written work could be built on the basis of the number of length of sequences of words that it copies from today's copyright registration filer.

Right now, the Googlebot crawls the vast text of the web and among many other things, builds up lists of digrams and trigrams, and longer sequences of words. That is how Google knows what word is most likely to follow another word, or another pair of words.

Imagine if you built up all four word sequences, all five word sequences and copyrighted those! Think of the money you could make! This would be a vast increase in economic activity, and therefore good.

it matters not what the subject is, if someone can use it to make money, or even find a way of the subject being beneficial to him so others have to pay fees, that is what will happen. copyright law has gotten so ridiculous, so over-stated, that people are more concerned with making money off what exists, rather than moving on or allowing others to move on

Mike should stop writing about European developments

That's actually all completely and utterly wrong. Geschriftenbescherming is not the Dutch version of the database right. The Dutch government is not suggesting ditching the database right. The European Court of Justice simply handed down a ruling that makes clear that retaining the special Dutch right of geschriftenbescherming is incompatible with EU law.

Mike, maybe you should stop writing about European developments - or at least research them properly beforehand??

Re: What?

If a database was collected separately, it would be legal. Do you see how impossible that is to enforce?

The database-protection is almost 100% a theoretical IP right for normal people. The only things it realistically is protecting is non-public databases and raw scientific data from publication. It is widely used as a "research rights" in subjects with non-public databases. It does slow the amount of research in these subjects very considerably, but since these databases are of high interest from China especially it is used as a bargaining chip in trade negotiations.

Re: Mike should stop writing about European developments

That's actually all completely and utterly wrong. Geschriftenbescherming is not the Dutch version of the database right.

Then what is it? The report I linked to described it almost identically to the database right.

The European Court of Justice simply handed down a ruling that makes clear that retaining the special Dutch right of geschriftenbescherming is incompatible with EU law.

We wrote about that decision, so I'm happy to update the post there as well.

Mike, maybe you should stop writing about European developments - or at least research them properly beforehand??

Again, I wrote the post based on the information we had, and we expect people to add more info in the comments. However, I still don't see where what we wrote was wrong. You say it's not a database right, but it certainly looks just like a database right. Could you explain why it's different?

Re: Re: Mike should stop writing about European developments

“Could you explain why it's different?”

I could indeed, although it’s not really my job to do your reporting for you.

The link you include in your post actually does a pretty good job of describing it: geschriftenbescherming is a Dutch idiosyncrasy that does not correspond to any right (at least that I know of) in any other jurisdiction. It provides protection for manuscripts regardless of originality and has been around for a while - certainly longer than the Database Directive. It is a form of subdued pseudo-copyright not connected in any way to the sui generis protection afforded by the database right. When the Database Directive was implemented into Dutch law, questions were raised as to the necessity of retaining geschriftenbescherming alongside the new sui generis right, but the government as the time opted to keep it and subsequent Supreme Court case law confirms its existence. However, as the link I included in my previous post explains, the ECJ ruling in Football Dataco made clear that the criteria of the Database Directive have to be met to allow protection for non-original databases, while copyright protection requires originality, leaving no room for the retention of individual national peculiarities of this kind. As the court stated: “Directive 96/9 must be interpreted as meaning that, subject to the transitional provision contained in Article 14(2) of that directive, it precludes national legislation which grants databases, as defined in Article 1(2) of the directive, copyright protection under conditions which are different to those set out in Article 3(1) of the directive.” The EU however is showing no indication of abolishing the database right, which means that the Dutch cannot to refuse to implement it even if they wanted to – which there is no reason to believe they do.

Look, Mike, I like Techdirt and respect your work. However, this is not the first time I have come across inaccurate information on this site about European developments. You’re reporting on events that take place in a country whose language you do not speak and you can’t even be bothered to do your research even *after* somebody calls you out in the comments for irresponsible reporting? Do you seriously think its good practice to publish whatever interpretation you *think* looks likely on the flimsiest of examinations and then rely on your readers to set you straight if your hunch proves wrong? You have access to an entire internet of data very literally right at your fingertips – why not use it?

If you want to be taken seriously as somebody whose opinions should be relevant in any way to policy-making in IP, you should at least make sure to get your facts right.

Re: Re: Re: Mike should stop writing about European developments

Thanks for the more detailed info. I've added more to the post.

I recognize that we disagree on how best to run this site, but we have always viewed it as a conversation. We do seek to get as much of the information as we can, but like any conversation, we learn more as we go, and that includes from our commenters (part of the reason we keep the comments open).

The simple fact is that every publication gets facts wrong at times, but I'd argue that we're much more open and willing to update the posts and admit to the error.

In this case, you suggest that we need to be 100% right all the time. That is an impossible standard.

Re: Re: Re: Re: Mike should stop writing about European developments

Actually I have no objection to an open and vibrant comment section – that’s one of the reasons why I visit this site. Also calling for rudimentary research to back your assertions rather than publishing hasty assumptions disguised as fact is honestly really not the same thing at all as “suggesting that you need to be 100% right all the time.” I don’t expect news outlets to be infallible. What bothered me here is not simply that you were wrong, but that you jumped to conclusions on zero factual basis in effect *making stuff up* in order to support your pre-conceived theory: there was absolutely nothing in the post you linked to to suggest any relationship at all between geschriftenbescherming and the database right – that is something you came up with entirely on your own. Indeed this particular instance isn’t at all an example of the EU aggressively pursuing expanded rights for database makers, while national law-makers champion the free exchange of information. Quite to the contrary, it’s the EU which is making use of the narrowly defined sui generis right in order to achieve copyright harmonisation across European states (which is important for legal coherence and consequently certainty) on the touchy issue of originality and encourage Member States (in this case the UK and the Netherlands) to do away with their traditionally expansive approaches, thereby achieving less protection for database-makers and easing the way towards a more limited – and more harmonised – European copyright law. It’s simply a really excellent development all round.

Like I said, I respect your work and I think that when it comes to the American situation – on which you are clearly very well-versed – you have excellent insights. But I do think it shows considerable arrogance to apply the same method to countries regarding whose legal systems, traditions and history you do not have the same reserves of experience and knowledge on which to rely. Perhaps a better policy for the future might be to issue requests for information from the commentariat: i.e. not “geschriftenbescherming is the Dutch implementation of the database right”, but “geschriftenbescherming sounds awfully similar to the database right. Anybody know what the precise relationship between the two is?”

In any case, thanks for the updates to the post - it makes a lot more sense now.

Re: Re: Re: Re: Mike should stop writing about European developments

Thanks for the more detailed info. I've added more to the post.

I recognize that we disagree on how best to run this site, but we have always viewed it as a conversation. We do seek to get as much of the information as we can, but like any conversation, we learn more as we go, and that includes from our commenters (part of the reason we keep the comments open).

The simple fact is that every publication gets facts wrong at times, but I'd argue that we're much more open and willing to update the posts and admit to the error.

In this case, you suggest that we need to be 100% right all the time. That is an impossible standard.

Translation: I'm not an actual journalist, and I don't follow even the most basic tenets of journalism. When I'm wrong, I pretend like it's OK to point to the comments as the vehicle to fix whatever shortcomings I might have. At the same time, I want people to take me seriously, even though I'm too lazy to do my homework and even though I'm too dishonest to defend anything I write. I'm a sad, sad manipulator who thrives on the mentally ill to boost my ego. I'm only able to whine about everything and to complain about everyone, but I'll never be honest and I'll never address your criticisms or questions directly. I'm a sad, fat, angry man who can't figure out how to be popular among people with an IQ above 60. I pander to the idiots of the world and I'm too ashamed to ever take a definite stance on any issue. I'm a total fake and a total coward, and I'll never address your criticisms on the merits. I don't do that. I only spread FUD. I only tear down. I never engage. I never build. I'm pretty much the biggest DB in the world. I hate you and myself.